Since 1968 the Courts have recognized that passengers in a car are under a legal obligation to wear a seatbelt. And if they do not, there are consequences. Take the example of a passenger who was not wearing a seatbelt and is injured in a motor vehicle collision and advances a claim. If the defendant can prove that the injuries would not be as severe if the passenger had been wearing a seatbelt, then the injured passenger will be found to be contributory negligent and the person’s damages will be reduced by the percentage amount of contributory negligence. This is the so-called ‘seatbelt defence’. This defence is used frequently by defence lawyers when circumstances warrant its use. The amount of the unbelted passenger’s contributory negligence is determined by how much worse the passenger’s injuries were because of the failure to buckle up. In the past, Courts have deducted 5% to 25% from an injured passenger’s damages for failure to wear a seatbelt.

How can a lawyer representing an injured passenger who was not belted, reduce or eliminate altogether negative consequences of the seatbelt defence? By looking to the duty of care the driver of the car owes to his or her passengers. In 1994 in the case of Galaske v. O’Donnell the Supreme Court of Canada affirmed that drivers have a duty to take reasonable care to ensure their passengers have buckled up. The Supreme Court likened the driver of a car to the captain of a ship or the pilot of a plane – meaning they are in a position of control. A responsibility that comes from this position of control is a duty to take reasonable steps to provide for the safety of your passengers. The Court found that this duty extended generally to any child under the age of 16. The presence of a parent who is also a passenger in the car does not remove the driver’s duty. The line of reasoning applied by the Court to find a duty owed to a child under the age of 16 can also be applied to incapacitated individuals, such as those who are intellectually challenged or impaired by drugs or alcohol.

A lawyer representing an unbelted passenger should always be aware of the duty owed by the driver to ensure passengers buckle up. If this duty of care is not met, the lawyer for the injured passenger should give strong consideration to including the driver of the car as a defendant.